First in a Series on the 2010 Compliance Update from the AMBA National Medical Billing Conference
During the AMBA National Conference a few weeks ago, I attended a very interesting presentation by Robert Liles, Esq., of Liles & Parker on compliance risks for medical billing services and physician providers in 2011.
If Mr. Liles intended to impart the fear of God, he certainly succeeded with me. God in this case being CMS, of course.
The presentation was intended primarily for third-party medical billers, but also included some important information for providers.
Mr. Liles pointed out that under Section 6401 of the Health Care Reform Act, Secretary H.H. Snow has the authority to require healthcare providers to put compliance plans in place. This will now be a condition of participation. “While the days of ‘voluntary’ compliance plans are over, the unresolved question is how this will affect third party billing companies,” he said.
Mr. Liles reported that changes to the False Claims Act were also subsequently covered in the Health Care Reform bill passed last March. Importantly, the Health Care Reform Act defined “overpayments” as “any funds that a person receives or retains” under Medicare or Medicaid, to which they are not entitled.
The Health Care Reform Act further provides that all overpayments must be reported and refunded within 60 days of being identified. The question is, what does “identified” mean?
“The bottom line is clear – should you identify an overpayment, it must be repaid within 60 days or the provider may be liable under the False Claims Act,” said Mr. Liles. “As the provider’s third party biller, you may also be jointly and severally liable. Third party billers are not keypunch operators – you will be held responsible.”
Regarding credit balances, Mr. Liles stated: “From a practical standpoint, health care providers need to ensure that “overpayments” and “credit balances” are returned to the proper payor in an expeditious fashion.” These would include:
• Medicare, Medicaid and other Federal Health Benefit Program payors
• Patients / Non-governmental Insurance Companies
• State – under State escheat laws, these balances may belong to the State if you cannot return them to the payor
While most States impose civil penalties, plus interest, some states also have the ability to impose criminal penalties.
Mr. Liles concluded that again, “The bottom line is fairly straightforward; ‘overpayments’” and ‘credit balances,’ don’t belong to the provider. They should be returned to their rightful owner or to the State.”
Another concern is the recent changes to the Federal Anti-Kickback Statute, according to Mr. Liles. These changes make it easier for the government to show knowledge and intent requirements under the statute.
“In the past, due in part to conflicting case holdings, violations of the Anti-Kickback Statute were sometimes difficult for the government to show because some Federal Courts interpreted the “knowing” (knowledge) and “willful” (intent) requirements as mandating that the government must show that a provider had specific knowledge that their actions violated the anti-kickback statute and that there was a specific intent to violate the law,” Mr. Liles said. Under PPACA, a person may now violate the Anti-Kickback Statute without specific knowledge OR a specific intent to violate the Anti-Kickback Statute. Notably, similar changes were made to the Criminal Health Care Fraud Statute.
Another key change is that Permissive Exclusion Authority is expanded: HHS-OIG can exclude any individual or entity that knowingly makes or causes to be made a false statement or omission in an application, agreement, bid or contract to participate or enroll as a provider or supplier under a Federal healthcare program.
Most third party billers assist providers with Medicare applications, notices, updates, etc. Under this provision, the third party billing company is now squarely in the government’s sights. Mr. Liles pointed out that third party billers should take special care when assisting physicians with Medicare applications.
Another major concern is that under the Health Care Reform Act, HHS-OIG (in consultation with CMS), is authorized to suspend Medicare/Medicaid payments to a provider or a supplier “pending an investigation of a credible allegation of fraud.”
This is the first in a series of blog posts on this very interesting presentation; future posts will cover the compliance risks posed by ZPICs, RACs and other CMS changes. Visit our blog weekly to read the additional posts.
Robert W. Liles, Esq. owns a private law firm, Liles & Parker, which focuses on fraud defense, internal audits, compliance, and regulatory matters. Robert serves as AMBA’s General Compliance Counsel.